Licence Appeal Tribunal File Number: 20-009563/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Abdurrhmaan Jikineh
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Erin M. Neal, Counsel
For the Respondent:
Andrew Smith, Counsel
HEARD: By way of written submissions
OVERVIEW
1Abdurrhmaan Jikineh, (“the Applicant”) was involved in an automobile accident on July 5, 2018, and sought benefits from Aviva General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the Schedule”). The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the Applicant entitled to a medical benefit in the amount of $5,981.64, less $2,328.67 approved by the Respondent, for physiotherapy recommended by Healthbound Health Network, in a treatment plan dated July 9, 2018?
ii. Is the Applicant entitled to interest on the overdue payment of benefits?
iii. Is the Applicant entitled to an award pursuant to section 10 of Regulation 664?
RESULT
3I find that the Applicant has not demonstrated that he is entitled to the unapproved balance of the treatment plan in dispute, nor interest or an award.
ANALYSIS
4The onus is on the Applicant to demonstrate that the benefits claimed are reasonable and necessary as a result of the accident.
5The Applicant first claims that he is entitled to the treatment and assessment plan in dispute because the Respondent failed to reply in accordance with the Schedule. Alternatively, the Applicant submits that the goods and services proposed in the treatment plan are reasonable and necessary. The Respondent contends that the treatment plan is not payable by statute without being incurred, that it provided sufficient medical reasons for the denial, and that the unapproved balance of the treatment plan is not reasonable and necessary as a result of the accident.
6I mostly agree with the Respondent and find that the Applicant is not entitled to the unapproved balance of the treatment plan because he has not demonstrated that it is reasonable and necessary as a result of the accident.
Details of the treatment plan dated July 9, 2018
7The treatment plan in dispute seeks to aid the Applicant by reducing pain and the frequency of his headaches, increase strength and range of motion, decrease anxiety and stress, and return the Applicant to his normal living and pre-accident activities. The plan is to be administered by a physiotherapist and includes 18 sessions of therapy at $149.63 per session, 18 sessions of “manual therapy” at $45.00 per session, travel expenses for 18 visits at $99.75 per visit, $99.75 for a total body assessment, $49.88 for preparation services, $99.75 for planning services, and $200.00 for documentation support. Based on the fees proposed and the travel expenses noted in the plan, I conclude that it proposes 18 physiotherapy sessions, each session lasting 150 minutes.
8The Respondent approved the treatment plan in part following an insurer’s examination. It approved the plan for 18 sessions lasting 60 minutes and denied funding for the additional 90 minutes per session. In addition to denying funding for the additional 90 minutes of therapy per session, the Respondent denied funding for transportation. In total, the Respondent approved $2,328.67 of the $5,981.64 proposed. To-date, the Applicant incurred two 60-minute physiotherapy sessions, an initial assessment fee, a file and medical documentation review, and a form fee, for a total of $549.13.
The Applicant is not entitled to any benefit by way of statute
9I find that the Applicant is not entitled to the treatment and assessment plan by operation of section 38(11).
10The Applicant submits that he is entitled to the plan because the Respondent failed to provide timely medical and other reasons to deny the plan. He directs me to the Divisional Court decision in Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”) to support his position. The Respondent disagrees with the Applicant’s interpretation of Suarez and submits that the Applicant is not entitled to the plan because he has not demonstrated that he incurred any of the goods and services during the period of non-compliance. I agree with the Respondent on this point.
11The Respondent is required to provide the medical and all other reasons to deny a treatment and assessment plan within 10 business days. If the Respondent fails to provide notice with the medical and other reasons, or to provide a timely notice, the remedy is that it is required to pay for all goods and services incurred by the Applicant prior to the date a compliant notice is provided. However, in this case, the goods and services incurred by the Applicant during the period of non-compliance are all included in the goods and services the Respondent previously agreed to pay for.
12I find the Applicant’s application of Suarez to be incorrect. The application of Suarez is that the Applicant does not need to incur a benefit in order to seek a finding from the Tribunal that it is reasonable and necessary. Suarez has no application here because the Applicant has been permitted to file an application with the Tribunal and seek a finding that the remainder of the treatment and assessment plan is reasonable and necessary.
13However, the Respondent failed to provide a clear denial in its notices to the Applicant. The Respondent’s notice dated September 28, 2018 stated that the Respondent received the treatment plan on September 17, 2018, that it agreed to pay for $2,328.67 of the treatment plan dated July 9, 2019, and that the Respondent would seek an insurer’s examination (“IE”). It provided no medical or other reasons to deny the remaining $3,652.97. This is an insufficient notice because it included no medical and other reasons to deny funding, as required by section 38(8) of the Schedule.
14No subsequent notice provided any reason to deny funding for the treatment and assessment plan until the notice dated December 28, 2018. However, that notice contradicts prior notices because it denied funding for the entire treatment plan, stating that the IE assessor concluded that the entire treatment and assessment plan was not reasonable and necessary. As a result of the unclear and contradictory notices, I conclude that the Respondent has failed to provide a compliant notice. However, the Applicant is not entitled to any unapproved benefits by statute because he never incurred any during the period of non-compliance.
15The operation of section 38(11)(2) provides that the Respondent is liable to pay for the goods and services that relate to the period of non-compliance starting on the 11th business day after receiving the treatment plan and ending on the day it gives a compliant notice. Here, the Applicant incurred no unapproved goods and services during the period of non-compliance. The clinic records state that the Applicant incurred the initial assessment, 60-minute physiotherapy sessions on July 9 and 17, 2018, a 30-minute document and file review on August 17, 2018, and incurred the $200.00 form fee on September 17, 2018. Considering the plan was submitted on September 17, 2018, all of these dates fall before the period of non-compliance, which started on the 11th business day following receipt of the plan. Further, I note that the Respondent is not required to pay for any goods and services incurred prior to the submission of a treatment and assessment plan, pursuant to section 38(2).
16Before moving on, I must further acknowledge the contradiction between the Respondent’s notices dated September 28 and December 28, 2018. The first notice approved the treatment and assessment plan in part, and the other found it to be entirely not reasonable and necessary. This contradiction makes it difficult for the Applicant to understand what the Respondent has agreed to pay for, what it does not agree to pay for, and the medical and other reasons why. However, through the benefit of the Case Conference Report and Order dated June 25, 2021 and submissions for this hearing, it is clear that the Respondent has maintained that it agrees to pay for $2,328.67, as outlined in the notice dated September 18, 2018. I see no reason to interfere with this decision.
17From the submissions and evidence, I conclude that the unapproved balance of the treatment and assessment plan relates to transportation fees and the additional 90 minutes of treatment per session. I will now address the transportation fees and additional treatment request.
Transportation expenses are not payable
18I find that the transportation expenses in the amount of $2,028.92 are not payable because the Applicant has not demonstrated that they are an authorized transportation expense as outlined in section 15(2)(c) of the Schedule.
19The Applicant made no initial submissions to justify the costs proposed in the treatment plan. In response, the Respondent correctly noted that the Applicant is not entitled to travel expenses for the service provider because the transportation services proposed are not an authorized transportation expense. The Applicant never contested the Respondent’s position in reply submissions.
20The Schedule describes authorized transportation expenses in section 3(1). Notably, it provides a 50 km deductible for insurers, unless the insured person suffers a catastrophic impairment as a result of the accident. In this case, the Applicant has not demonstrated that he sustained a catastrophic impairment as a result of the accident, nor has he established that his roundtrip to the treatment provider is more than 50 km per round trip.
21The Applicant has not established that transportation is a reasonable and necessary medical and/or rehabilitation expense. He has not provided any reasons why he is unable to visit his treatment provider and requires transportation expenses for the provider. Accordingly, I find that the Applicant is not entitled to transportation expenses in the amount of $2,028.92 because he has failed to meet his burden to demonstrate that the expenses are reasonable and necessary.
The Applicant is not entitled to an additional 90 minutes of treatment per session
22I find that the Applicant has not met his burden to demonstrate that he requires 150 minute physiotherapy sessions, instead of the 60 minute sessions approved by the Respondent.
23The Applicant made no submissions, nor tendered any evidence that demonstrates that he requires an additional 90 minutes per physiotherapy session. Instead, despite the information in the Case Conference Report and Order dated June 25, 2021, the Applicant’s submissions focus on whether physiotherapy is reasonable and necessary. Further, the Respondent noted the issue with respect to the duration of the treatment session in its submissions, yet the Applicant never clarified his position on the issue in reply submissions. Essentially, it is up to the Applicant to demonstrate why the unapproved extended treatment sessions are reasonable and necessary, since the Respondent agreed that physiotherapy is reasonable and necessary by partly approving the plan. The Applicant has not met that burden.
24Having found that the Applicant has not demonstrated that he is entitled to the transportation fees, nor the additional 90 minutes of treatment per session, I conclude that he is not entitled to the unapproved balance of the treatment and assessment plan.
Interest
25Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is not entitled to any denied benefits, it follows that no payments went overdue, and the Applicant is not entitled to any interest.
Award
26The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Having found that no benefit is owed, it follows that no benefit was unreasonably withheld, and no award is payable.
Conclusion and ORDER
27The Applicant is not entitled to the unapproved balance of the treatment and assessment plan dated July 9, 2018, nor interest or an award.
28The Application is dismissed.
Released: October 19, 2023
Brian Norris
Adjudicator